Sri Saikat Ghosh vs The State Of West Bengal & Ors
2023 Latest Caselaw 1526 Cal

01.03.2023
Item No.08
Court No.32
Avijit Mitra
                             WPA (H) 13 of 2023

                            Sri Saikat Ghosh
                                  - Versus -
                           The State of West Bengal & ors.


                            Mr. Ayan Poddar,
                            Mr. Ayan Dutta,
                            Mr. Soham Dutta,
                            Ms. Poulumi Bhowmick
                                        ...for the petitioner
                            Mr. Sabir Ahmed,
                            Mr. Simanta Kabir
                                        ....for the State


                     Affidavit of service filed by the petitioner be kept on

               record.

                     No one appears on behalf of the private respondent.

The present writ petition has been preferred primarily

praying for the following relief :

"(a)That this Hon'ble Court be pleased to issue a Writ of Habeas Corpus AND/OR any other Writ Order or Direction directing the Respondent No.2 and Respondent No.3, their men, agents, employees and subordinates to take immediate steps to produce the CORPUS-1, i.e. Saptarshi Ghosh (son of the petitioner) and CORPUS-2 i.e. Aarshi Ghosh (daughter of the petitioner) before this Hon'ble Court AND/OR give directions to Respondent No.4 to produce the CORPUS- 1 i.e Saptarshi Ghosh (son of the petitioner) and CORPUS-2 i.e. Aarshi Ghosh (daughter of the petitioner) before this Hon'ble Court".

Mr. Poddar, learned advocate appearing for the

petitioner submits that the petitioner married one Aditi

Ghosh (in short, Aditi) on 14th July, 2013. They were

blessed with a son namely, Saptarshi Ghosh (in short,

Saptarshi) on 8th October, 2016 and a girl namely, Aarshi

Ghosh (in short, Aarshi) on 15 th July, 2018. The petitioner

along with his wife and children were residing at

Hyderabad. The children were admitted at Bhartiya Vidya

Bhavan's Public School, Bhel Township, R.C. Puram,

Hyderabad. Saptarshi is presently studying in Class-I and

Aarshi is studying in L.K.G. On 12th November, 2022 Aditi

along with her minor children left her matrimonial house

and accompanied her parents-in-law to attend a marriage

ceremony on 19th November, 2022. While travelling by train,

she along with her minor children de-boarded the train at

Santragachi Station with an assurance to her parents-in-

law that she would attend the marriage ceremony along

with her children. Surprisingly thereafter, no intimation

was given by Aditi and since then the petitioner's wife and

children went missing. Such fact was brought to the notice

of the police authorities by submitting representations but

the same were not acted upon. Aggrieved by such inaction,

the petitioner was constrained to approach the Child

Welfare Committee but in vain. The petitioner also issued a

legal notice but the same was not responded to. As such

the petitioner had no other option but to approach this

Court by filing the present writ petition.

Mr. Poddar submits that the children were studying

at Hyderabad and their examinations are due to commence

on and from 1st March, 2023. Unless appropriate direction

is issued by this Court to hand over the custody of the

children to the petitioner, his children would be missing an

academic year.

Mr. Poddar submits that the petitioner is the natural

guardian of his children and in the facts and circumstances

of the case Aditi should be directed to hand over the

custody of the children. In support of such contention he

has placed reliance upon the judgment delivered in the case

of Yashita Sahu Vs. State of Rajasthan & ors. reported in

(2020) 3 SCC 67.

He argues that for determination of the issue of

custody of children, it is not the right of the parties but

welfare of the children which is of determinative

significance.

Mr. Kabir, learned advocate appearing for the State

respondents submits that there is a matrimonial dispute

between the petitioner and his wife. Aditi lodged a

complaint before the Officer-in-Charge, Pandua Police

Station alleging that she had been tortured by her husband

and her in-laws and as such she was constrained to leave

her matrimonial house. The said complaint was registered

as Pandua Police Station Case no.19 of 2023 dated 7 th

January, 2023 under Sections 498A/406 of the Indian

Penal Code and under Sections 3/4 of the Dowry

Prohibition Act. In the said proceedings, notices under

Section 41A of the Code of Criminal Procedure (in short,

Code) were issued and the same were complied with.

Thereafter all the persons named in the FIR surrendered

before the learned Chief Judicial Magistrate, Sadar, Hooghly

at Chinsurah and they were granted bail on 14 th February,

2023. Investigation in the said case is still continuing.

Mr. Kabir further informs this Court that Saptarshi

has presently been admitted at Mamon National School,

(English Medium) Pandua, Hooghly. A certificate to that

effect has also been issued by the Vice-Principal of the said

school. The children are presently residing with her mother

at her parental house. Let the report, as filed by Mr. Kabir,

be kept on record.

In reply, Mr. Poddar submits that Aditi lodged a

complaint as a counterblast to the petitioner's earlier

representation to the police authorities and the Child

Welfare Committee. No documents have been placed to

indicate as to whether Aarshi has been admitted in any

school.

Heard the learned advocates appearing for the

respective parties and considered the materials on record.

Indisputably there is a matrimonial dispute between

the petitioner and his wife. Allegations and counter-

allegations have been levelled by the parties against each

other. Aditi along with her children are presently residing

at her parental house. The judgment upon which reliance

has been placed by the petitioner is distinguishable on

facts. We do not find any material to infer that the

petitioner's wife and her children had been illegally

detained.

In child custody matters, the ordinary remedy lies

only in the Guardians and Wards Act. There are significant

differences between the enquiry under Act VIII and the

exercise of powers by a writ Court which is summary in

nature. From the pleadings and documents placed before

us we do not find any clinching material to infer that the

welfare of the minor children is at peril. The allegations and

counter-allegations levelled by the parties need to be

examined with reference to evidence.

In view thereof, no interference is called for in the

present habeas corpus petition and the same is,

accordingly, disposed of.

However, nothing in this order will prevent the

petitioner from taking steps before the appropriate forum, if

so advised and in accordance with law.

There shall be no order as to costs

All parties shall act on the server copies of this order

duly downloaded from the official website of this Court.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)